Citation Nr: 1327356	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  10-48 819	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUE

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund. 


ATTORNEY FOR THE BOARD

A. Fagan, Associate Counsel


INTRODUCTION

This matter comes to the Board of Veterans' Appeals (Board) from a February 2010 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines, which found that the appellant's spouse did not have a claim for Filipino Veterans Equity Compensation pending at the death.  In April 2013, the Board determined that the appellant's spouse did file a claim for a onetime payment from the Filipino Veterans Equity Compensation Fund (FVECF) and remanded the issue for verification of service.


FINDING OF FACT

The service department has certified that the appellant's spouse did not have qualifying service as a member of the Philippine Commonwealth Army, including the recognized guerrillas, in the service of the United States Armed Forces during World War II.


CONCLUSION OF LAW

The appellant's spouse did not have the requisite qualifying service to entitle him to payment from the Filipino Veterans Equity Compensation Fund.  38 U.S.C.A. §§ 101, 5107 (West 2002); 38 C.F.R. § 3.203 (2012); Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The VA has a duty to provide notification to the claimant with to respect establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).  However, these provisions are inapplicable in the instant case, as the law, and not the underlying facts or development of the facts, is dispositive of this matter.  38 U.S.C.A. § 5103A (West 2002 & 2012); Manning v. Principi, 16 Vet. App. 534 (2002).

Filipino Veterans Equity Compensation Fund

The appellant contends that her spouse had recognized guerrilla service in the Philippine Commonwealth Army.  Therefore, she asserts that she is entitled to a one-time payment from the Filipino Veterans Equity Compensation Fund as the surviving spouse.

If an eligible person who has filed a claim for benefits under this section dies before payment is made under this section, the payment under this section shall be made instead to the surviving spouse, if any, of the eligible person.  The American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009), Section 1002 (c)(2).

The Philippine islands became a United States possession in 1898 when they were ceded from Spain following the Spanish-American War.  During World War II, various military units, including the regular Philippine Scouts, the new Philippine Scouts, the Guerrilla Services, and more than 100,000 members of the Philippine Commonwealth Army, were incorporated into the United States Armed Forces of the Far East by an order of President Franklin D. Roosevelt. Military Order of July 26, 1941, 6 Fed. Reg. 3825 (Aug. 1, 1941).  Current law, however, provides that many of those who served in the Philippine Islands during World War II do not have qualifying active service for the purpose of receiving VA benefits.  38 U.S.C.A. § 107 (West 2002).

The particular benefit claimed originated on February 17, 2009, with the American Recovery and Reinvestment Act to promote job preservation and creation, infrastructure and investment, energy efficiency and science, assistance to the unemployed, and State and local fiscal stabilization.  Pub. L. No. 111-5, 123 Stat. 115 (2009).  That legislation established the Filipino Veterans Equity Compensation Fund, which is charged with providing one-time payments to eligible persons.  Pub. L. No. 111-5, § 1002, 123 Stat. 115 (2009).

An eligible person is defined as any person who served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order dated July 26, 1941.  That includes any person who served in military units such as the organized guerrilla forces, under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States; as well as any person who served in the Philippine Scouts under section 14 of the Armed Forces Voluntary Recruitment Act of 1945 (59 Stat. 538).  Additionally, the person must have been discharged or released from such service under conditions other than dishonorable.  Pub. L. No. 111-5, § 1002(d), 123 Stat. 115 (2009).

The Act further directs VA to administer the provisions of this section in a manner consistent with applicable provisions of title 38, United States Code, and other provisions of law, and shall apply the definitions in section 101 of such title in the administration of such provisions, except to the extent otherwise provided in this section.  Pub. L. No. 111-5, 123 Stat. 115 (2009).

Specifically, VA is authorized by statute to prescribe regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under the laws administered by VA. 38 U.S.C.A. § 501(a)(1) (West 2002).  Pursuant to that authority, regulatory guidelines have been developed governing the evidentiary requirements for establishing the requisite service for VA benefits purposes.

The guidelines provide that, for the purpose of establishing entitlement to benefits, VA may accept evidence of service submitted by a claimant, such as a Service Separation Form, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge, without verification from the appropriate service department if the evidence meets the following conditions: (1) the evidence is a document issued by the service department, (2) the document contains needed information as to length, time and character of service; and (3) in the opinion of the VA the document is genuine and the information contained in it is accurate.  38 C.F.R. § 3.203(a) (2012).

With respect to documents submitted to establish a creditable period of wartime service for pension entitlement, a document may be accepted without verification if the document shows, in addition to meeting the above requirements, (1) service of four months or more, or (2) discharge for disability incurred in the line of duty, or (3) 90 days creditable service based on records from the service department such as hospitalization for 90 days for a line of duty disability.  38 C.F.R. § 3.203(b) (2012).

When the claimant does not submit evidence of service or the evidence submitted does not meet the requirements discussed above, VA shall request verification of service from the service department.  38 C.F.R. § 3.203(c) (2012).

Findings by the service department verifying a person's service are binding on VA for the purpose of establishing service in the United States Armed Forces.  Duro v. Derwinski, 2 Vet. App. 530 (1992); Dacoron v. Brown, 4 Vet. App. 115 (1993); Venturella v. Gober, 10 Vet. App. 340 (1997); Soria v. Brown, 118 Fed. 3rd 747 (Fed. Cir. 1997) (where the United States Department of the Army did not certify alleged service in the Philippine Army, VA properly did not consider his claim for Veterans' benefits based on that service).

In this case, the appellant and her spouse submitted several documents purporting to show that the appellant's spouse served as a recognized guerilla with the Anderson Fil-American Guerillas (AFAG) from January 1942 to May 1945.  Those documents are an identification card issued by AFAG; certification from the Office of the Punong Barangay; a copy of an acknowledgement card from Veterans Claims Commission dated August 20, 1958; a birth certificate; a baptismal certificate; a picture of the appellant's spouse holding the latest national newspaper with his thumb mark on the back; a copy of a postal identity card; and a copy of a senior citizen ID card.  However, for VA purposes, these documents are not acceptable verification of qualifying service.  38 C.F.R. § 3.203  (2012).

Accordingly, the Board remanded the claim in April 2013 and instructed the RO to contact the service department and inquire as to whether the reported service of the appellant's spouse constituted qualifying service for VA purposes.  That inquiry was accompanied by copies of the documents provided by the appellant and her spouse.  However, the response of record from the National Personnel Records Center (NPRC) indicated that the appellant's spouse had not accrued any qualifying service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas, in the service of the Armed Forces of the United States.  Consequently, the RO determined that the appellant's spouse did not have the requisite service to establish eligibility for payment from the Filipino Veterans Equity Compensation Fund and, thus, denied the appellant's claim in a June 2013 supplemental statement of the case.

Thus, the NPRC has duly considered the appellant's application for VA benefits and certified that her spouse had no qualifying active service as a member of the Philippine Commonwealth Army, including in the recognized guerrillas.  The Board is bound by that certification.  Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008) (if the United States service department does not verify claimed service, applicant's only recourse lies with the relevant service department, not VA).

In support of her claim, the appellant has submitted additional written lay statements asserting her entitlement based on her spouse's claimed service as a member in the recognized guerillas.  However, neither the appellant's nor her spouse's lay evidence qualify as acceptable proof of the requisite service, and thus cannot serve to substantiate the appellant's claim.  38 C.F.R. § 3.203 (2012). 

Accordingly, the Board concludes that the appellant does not meet the requisite legal requirements for obtaining a one-time payment from the Filipino Veterans Equity Compensation Fund.  Therefore, her claim for benefits must be denied.

In reaching this conclusion, the Board wishes to emphasize that it remains sympathetic to the appellant and does not question the sincerity of her belief that she is entitled to VA benefits, specifically in the form of payment from the Filipino Veterans Equity Compensation Fund.  As referenced above, many of the individuals who served in the Philippine Islands during World War II do not have qualifying active service for the purpose of receiving VA benefits.  Nevertheless, the Board is without authority to grant the appellant's claim on an equitable basis and instead is constrained to follow the specific provisions of law.  38 U.S.C.A. § 7104 (West 2002 & 2012); Harvey v. Brown, 6 Vet. App. 416 (1994).


ORDER

Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is denied.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs